Path 2

Path 2

Civil Rights Rollback

July 27, 2004

Attorney LaShawn Warren, a leader in the fight for a federal law banning racial profilingphoto: Rick Reinhard

Four years ago the nation stood at the cusp of a major civil rights victory. Activists from across the country rallied in Washington, D.C., to end racial profiling. Polls showed a majority of Americans opposed the practice. Al Gore vowed that as president he would make a law banning it, “the first civil rights act of the 21st century.”

George W. Bush agreed with his opponent. “I can’t imagine what it would be like to be singled out because of race and stopped and harassed,” he said during one 2000 debate. “That’s just flat wrong.” Then he did Gore one better: “There is other forms of racial profiling that goes on in America. Arab Americans are racially profiled. . . . People are stopped, and we got to do something about that.”

But today his administration’s reaction to the 2001 terrorist attacks has not only betrayed Bush’s own rhetoric, but worse, it has undermined the political force of the anti-profiling movement in general—the force that made it a profound civil rights cause, not just a policy debate. By couching group-based profiling as necessary to homeland security, the government has traded the principles of universal equality and individual dignity for the presumption of safety. Nearly no one this election year has been bold enough to hint at the outrage that once powered a bipartisan movement. It has become impossible to be righteous about racial profiling without encountering the inevitable “But what about 9-11?”

What about it? Three years out, the question demands more than a knee-jerk nod. A thoughtful look will show that the terrorist attacks did not make such profiling any less wrong than it was on September 10, 2001. In fact, it is all the more insidious today, because the war on terrorism has lent profiling the veneer of legitimacy—even urgency, after alerts such as the one regarding financial centers last weekend. As this modern civil rights movement begins to put itself back together, with a renewed push for federal legislation, it is important to realize that racial profiling has not gotten any less wrong—the government is just more willing to do the wrong thing. And to be willing to do the wrong thing is a devastating rejection of the values of American life.

One and the same

“Racial profiling is being stopped driving while black or driving while Hispanic. This is not racial profiling,” said Mark Corallo, spokesperson for the Department of Justice, when asked about the administration’s 9-11–related operations. He voiced precisely the kind of thinking that has obscured the crisis of profiling for the past three years.

Trawling for terrorists and pulling over motorists in search of drugs are in fact the same thing. While it may be acceptable to target people based on a racial or ethnic description if—and only if—there is some specific indication that those particular people are actually criminals, broad sweeps based on general traits are never OK. Not only are they unlikely to yield “hits” and certain to humiliate innocent parties, but such dragnets also violate this nation’s fundamental principle that people will be treated as individuals and not according to stereotypes.

“You either have racial profiling, or you don’t have racial profiling. You can’t have it both ways,” says LaShawn Warren, a leader in pushing for passage of the End Racial Profiling Act of 2004, currently a bill with support from 124 members of the House and 16 of the Senate. As a national legislative counsel for the American Civil Liberties Union, she has been struggling to show Congress members that FBI questioning and immigration roundups of people who appear to be Arab or Muslim—whatever that looks like—are “no different than the old kind of racial profiling that we said was wrong.”

There is little wonder that some people refuse to believe her. The Bush administration has led the way. In his long-promised racial profiling ban, announced with great fanfare in June 2003, Bush told federal law-enforcement agencies that “racial profiling is wrong and will not be tolerated” and that “stereotyping certain races as having a greater propensity to commit crimes is absolutely prohibited.” (The directive, which is not a law, lacks any enforcement mechanism, so the prohibition is absolute only in theory.) But he created a crippling exception: “The above standards do not affect current federal policy with respect to law enforcement activities and other efforts to defend and safeguard against threats to national security.”

In effect, that “national security” loophole has become the exception that would erase the rule. Like a political ray gun, it neutralizes any critic who would cry racism or xenophobia when it comes to 9-11–related profiling.

Corallo pointed out, “There were 19 hijackers who were from an Islamic background.” Certainly it makes sense to hunt for people like them—but like them how? There was once a time when people defended the “driving while black” variety of profiling, because searching certain minorities for drugs was said to make sense. But as publicindignation mounted over the years, the U.S. Customs Service, for example, scaled back its profiling and turned to behavior-and intelligence-based investigations instead. Drug-runner apprehensions more than doubled.

This administration has not scored big points for its investigative depth. Nevertheless, it “outright rejects” allegations that it engages in broad, stereotype-based profiling, Corallo said. “I understand what they’re saying when they feel there’s a focus on them,” he said of Arab, Muslim, and South Asian immigrants and citizens who complain of biased treatment, “but there’s not.”

Maybe it depends on how one defines “focus.”

Pervasive pattern

Tens of thousands of people from Muslim, Arab, and South Asian backgrounds have been targeted by the government in a slew of sweeps since 9-11. Teenage boys and men from 25 predominantly Muslim countries, none accused of any crime, at one point were ordered to report to immigration offices for questioning and fingerprinting, or risk arrest and deportation. By the end of the “special registration,” over 82,000 individuals had complied and over 13,000 were slated for deportation as a result.

The FBI initiated two official rounds of interviews it called “voluntary” with some 8,000 immigrants and citizens of Arab, Muslim, and South Asian backgrounds. Community advocates claim that agents show up unannounced all the time—although Corallo said, “People are not getting knocks on the door and questioned.” In everyday encounters with local police, co-workers, and neighbors, thousands more have been reported to authorities and detained, according to these advocacy groups. The Justice Department’s own internal watchdog revealed in 2003 that scores of immigrants experienced physical abuse or due process violations while in government custody.

No matter that exactly zero terrorism-related charges have emerged from these initiatives, and that all the high-profile cases have resulted from real investigative work or pure accident. (From Timothy McVeigh to John Walker Lindh, the most infamous national security threats do not fit the Arab terrorist profile at all.) The roundups continue, according to weekly e-mail updates among immigration lawyers and advocates.

Well, these are immigrants, one argument goes. They’re not supposed to be here in the first place, and they don’t enjoy the same rights as citizens. Corallo claims that border control has “stopped 12 known terrorists from getting into the country. We also caught hundreds of convicted felons.” (The Voice could find no mention of these figures, outside of Corallo’s comment.) The vast majority jailed as a result of the immigration crackdowns are, in fact, guilty of something—although almost universally of technical infractions like staying past a visa deadline or not taking enough class credits to fulfill the student-visitor requirements. Putting aside the important debate about whether prolonged detention is the right response to a paperwork problem, these folks technically are subject to monitoring by the U.S. government.

Yet this monitoring has hardly been equally applied. “They weren’t calling in immigrants from Great Britain,” the ACLU’s Warren points out. “There’s a really unjustifiable distinction being made.”

That distinction is where 9-11–related profiling and the more traditional notion of racial profiling meet. That distinction is stereotype. Whether based on race, religion, or national origin, the special burden of a profiled person is being plagued by negative assumptions tagged to his or her “type.”

The result of such profiling is not just indignation but rank inequality. Says Leti Volpp, author of a widely cited 2002 law article entitled “The Citizen and the Terrorist,” “Being a citizen means enjoying all the rights of a citizen. But ‘driving while black’ was a sign that African Americans could only enjoy second-class citizen-ship.” She explains that people who are perceived to be Arab or Muslim face the same injustice. Instead of the right to be considered innocent until proven guilty, for instance, they “have to prove themselves innocent.”

Just last week it emerged that the Census Bureau had given detailed location and national-origin data on Arab Americans—U.S. citizens—to the Department of Homeland Security. DHS claimed it wanted the information in order to post Arabic language signs in the right airports. But as the news shot around civil rights listservs, people recalled how census data was used during World War II to identify Japanese Americans who would be sent to U.S. internment camps.

Though the administration may deny it, former federal appellate judge Timothy Lewis, who was appointed to the Third Circuit by the first President George Bush, insists that there has been a widespread pattern of unjustified profiling by the government since 9-11. He agreed to chair a series of national public hearings on “war on drugs” and “war on terror” profiling last year for Amnesty International USA, only after the organization agreed to invite law enforcement representatives for fairness’s sake.

“What struck me more than anything was the pervasiveness of the practice,” said Lewis, who was also once a federal prosecutor and is now of counsel at Schnader Harrison Segal & Lewis in Washington, D.C. “I’m talking about going after people without any criminal predicate. Racial profiling is a national phenomenon. And the hearings barely scratched the surface.”

The profiling of blacks and Latinos continues to thrive, even as the once robust opposition to it has deflated “in the frenzied atmosphere after 9-11,” as Lewis put it. From Massachusetts to Missouri to Texas, studies as recent as this May showed that minorities were still disproportionately—in one state as much as 40 percent more often—subjected to traffic stops, at rates unjustified by their actual record of possessing drugs. In one egregious situation, police in Charlottesville, Virginia, indiscriminately demanded DNA samples from area black men in their hunt for a serial rapist. The dragnet continued for over two years before public scrutiny this spring finally convinced authorities to stop.

Private hate, public problem

For 9-11–related-profiling victims, the element of “foreignness” gives discrimination a special twist, says Volpp. “People who look a certain way are assumed not to be citizens to begin with,” but rather un-welcome outsiders, she says. That perception makes them especially vulnerable, not just to government intrusions but to private acts of violence.

Over a thousand 9-11–related bias incidents, including harassment and physical attacks, have been recorded since 2001 by groups such as the Council on American-Islamic Relations and the Sikh Coalition, and by the Justice Department’s Civil Rights Division. They have included assaults, arson, and even killings. And those are just the incidents that have been reported by people confident or informed enough to seek out these resources.

Official profiling and private bias are connected, says Muneer Ahmad, an associate professor at American University Law School. Although no one can legislate away personal prejudices, he says, “The government sends signals and cues all the time as to what is permissible. The end of racially discriminatory laws against African Americans didn’t translate instantly into substantive equality. But when the government said segregation was okay, it was communicating a lot about what was appropriate. It’s one thing for racial prejudice to be a part of society, but you provide people license to engage in that kind of behavior if you don’t have a policy that condemns it.”

The federal government has vigorously prosecuted some hate crimes, for example one in which a Sikh postal carrier in California was shot in the neck with a pellet rifle. And President Bush has repeatedly admonished the nation not to engage in bias against Muslims and Arabs.

But Ahmad says those statements must be juxtaposed with the official profiling of people from certain backgrounds. “Condemning the private violence gives the administration political cover. If you morally condemn something, you elevate yourself.”

Racial profiling can only be eradicated by a renewed social movement that exposes and opposes it. Politicians can’t be trusted to buck 9-11 politics and challenge the practice on their own, without strong popular support, since they fear being labeled soft on terror. And profiling victims have almost never found justice in the courts, since judges are notoriously reluctant to apply the Constitution’s equal treatment mandate in a way that might interfere with police discretion.

Indeed, President Bush was oddly prescient when he said in 2000, “Racial profiling isn’t just an issue with local police forces. It’s an issue throughout our society. And as we become a diverse society, we’re going to have to deal with it more and more.”

He couldn’t have known how much more urgent that message would become after four years of his leadership. But at this moment when reasonable fears of terrorism too often find expression in unreasonable fears of certain people, and the government flatly denies that it is part of the prejudice problem, only a broad social movement can achieve the civil rights victory that seemed so possible four years ago. The effort to end racial profiling is part of the ongoing struggle to make the American dream of equality and dignity come true for everyone.